January 18, 2014

SCOTUS grants cert on pair of cell-phone search cases

As reported in this SCOTUSblog entry, "the Supreme Court agreed on Friday afternoon to rule on police authority to search the contents of a cellphone they take from an individual they have arrested." Here is more from Lyle Denniston's effective review of the new Fourth Amendment new technology cases now on the SCOTUS docket:

The Court accepted for review a state case and a federal case, involving differing versions of hand-held telephone capacity.

The Court rewrote the question in the state case — Riley v. California — to limit it to the constitutionality of the evidence actually used against the suspect at his trial. It granted without limitation the government appeal in the other case: United States v. Wurie....

Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.

The state case involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the shooting incident in August 2009; instead, he was arrested later, after he was stopped for driving with expired license plates. Police seized the cellphone he was carrying at the time of his arrest, and twice examined its contents, without a warrant.

The data turned up evidence identifying him as a gang member out to kill members of a rival gang. Other contents included a photo of him with a red car seen at the shooting site. Police were then able to trace calls, leading to a trail of evidence pointing to Riley as a participant in the shooting. No one positively identified him, but the data from the cellphone search was put before the jury, which convicted him of all three counts. He has been sentenced to fifteen years to life in prison....

The government case involves a South Boston man, Brima Wurie. In 2007, a police officer saw him make an apparent drug sale out of his car. The officer confronted the buyer, turning up two bags of crack cocaine. He partially identified his drug source.

Officers followed Wurie from the scene, and arrested him. He was then taken to a police station, where the officers retrieved two cellphones. One of the phones was receiving repeated calls from a number identified as Wurie’s home. The officers checked the phone’s call log. They traced him to his house. The officers deemed the fact that he had cellphones with him as an indication that he carried out drug dealing with the use of such a device.

He was convicted of being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute it He sought to block the use of the evidence taken from his cellphone, but that failed. He was convicted on all charges, and has been sentenced to 262 months in prison.

The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction.

Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each. They probably would be argued one after the other, however. The Court did not expedite the briefing schedule, but they still are expected to be heard in April.

Though these two new cases are directly not about the defendants' underlying crimes and sentences, I cannot help but notice the notable differences in state and federal outcomes. The state defendant, Riley, was convicted of the very violent crimes of "shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon," will be eligible for parole in 15 years. The federal defendant, Wurie, was only convicted "being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute," but he has to serve nearly 20 years before having a chance at release from the federal pen.

Comments

There have also been disparate appellate rulings on passwords. One court said, Fifth Amendment right to not self incriminate. Another said, enter the password confidentially, let the police view the protected files, not self incrimination. Phone is an object.

Riley may have received a longer sentence. The state court of appeal opinion says in a footnote that he was convicted of, among others, the enhancement under PC 12022.53(b)&(e)(1) which is an additional 10 years and is mandatory. There may be a reason to explain why the court of appeal would say he received only 15 years to life but there is no mention of that in the opinion so it is unclear. Also the opinion is silent on whether his crimes were run concurrent or consecutively, which seems unlikely but again is unclear.

If he only received 15 to life it likely was becaus the court did not feel that he personally fired any shots. In fact PC 12002.53(b) does not include a discharge of a firearm. The opinion mentions PC 12022.53(b)&(e)(1) which means that an accomplice used a gun in a game crime, not Riley.

Posted by: David | Jan 18, 2014 11:56:04 AM

"Though these two new cases are directly not about the defendants' underlying crimes and sentences, I cannot help but notice the notable differences in state and federal outcomes. The state defendant, Riley, was convicted of the very violent crimes of "shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon," will be eligible for parole in 15 years. The federal defendant, Wurie, was only convicted "being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute," but he has to serve nearly 20 years before having a chance at release from the federal pen."

Why does the genius of federalism, so celebrated in discussions of pot "reform," become problematic here?

Posted by: Bill Otis | Jan 18, 2014 10:26:35 PM

Bill,

Because only The Right Answer® matters, not the way that answer is arrived at.

Posted by: Soronel Haetir | Jan 19, 2014 2:21:50 AM

Bill, what leads to you think I am criticizing federalism in my sentencing observation here? Rather, I am highlighting, as I often do, that the federal sentencing system regularly sends less violent offenders to prison for much longer periods of mandatory federal prison time than state sentencing systems sends more violent offenders to prison. (Of course, I have not researched the criminal history of these two offenders to see if that might in part account for the sentencing differences here.)

Importantly, Bill, you should see that I am not making any assertion that I think one or the other sentence is more "right." Rather, I just here made an observation in order to highlight that state sentencing systems --- which are often much more subject to democratic accountability because prosecutors (and even judges) are elected --- are often not as severe as the federal sentencing system. When you combine that insight with the "states-are-better at most stuff" federalism perspectives embraced by me (and folks like Rand Paul and Ronald Reagan and the authors of our Constitution), it becomes even that much more evident that the federal sentencing system is out of whack in a variety of ways.

I trust, Bill, you do not think I am being inconsistent when I make a point intended to show that the federal sentencing system is out of whack. But plainly I did not make that point clear enough in the main post, so I thank you for giving me a good reason to explicate the point.

Posted by: Doug B. | Jan 19, 2014 6:48:47 AM

Doug --

To say that a single relatively lighter sentence in single state for a single offense that is very roughly similar to a federal offense that resulted in a relatively harsher sentence -- without giving the specifics of what either defendant actually did -- is scanty evidence at best for the proposition that the "states" are generally "better" at "sentencing" than the feds.

Posted by: Bill Otis | Jan 19, 2014 2:22:51 PM

Soronel --

I agree that substance matters more than procedure, but procedure does count, not least because well thought-through procedure is going to help the decider get to the correct substantive result. See, e.g., the Court's recent decision in Kansas v. Cheever, in which the right procedural decision (allowing the jury to hear truthful evidence from the defendant's required psychiatric interview) helped the jury get to the correct substantive result (conviction and the death penalty).

Posted by: Bill Otis | Jan 20, 2014 2:25:13 PM

For those of us practicing in state courts, we are just glad to (maybe) get the issue of cellphones resolved. Except for the fact that cellphones have been evolving very quickly in recent years to allow even more incriminating information to be stored on them by the "geniuses" who stumble into the criminal justice system, I would be somewhat shocked that it has taken this long for a case on searching cellphones to work its way up to the Supreme Court.

Posted by: tmm | Jan 21, 2014 11:58:00 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB